PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY [*2]APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PART OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

PITCHAL, J.F.C:

Now pending before the Court are the motion of petitioner, Rasheeda K., for leave to amend (motion sequence # 2), and the motion of respondent, Tawana M., for summary judgment (motion sequence # 3).^[FN1] For the reasons that follow, petitioner's motion is denied, respondent's motion is granted, and the petition is dismissed.

Procedural Background

On or about October 25, 2011, the Administration for Children's Services ("ACS") filed a petition pursuant to Article 10 of the Family Court Act against Tawana M. alleging that she had neglected her children, Kasan W. (DOB 6/19/99) and Noah K. (DOB 6/29/10). Both children were remanded by the Court (Hon. Kelly O'Neill-Levy) to temporary ACS custody.^[FN2] Ms. M. requested their return; Judge O'Neill-Levy denied this request on March 19, 2012, following a lengthy hearing pursuant to Fam. Ct. Act § 1028. During the period he was removed from his mother, Noah resided with his paternal grandmother, Rasheeda K.. A fact-finding hearing on the Article 10 petition was held before Judge O'Neill-Levy over several dates in 2012. On November 29, 2012, Judge O'Neill-Levy found that Ms. M. had neglected Kasan but dismissed Noah's petition as to Ms. M., and Noah was released to her soon thereafter.

Though Ms. M. was found not to have neglected Noah and had her custodial rights to him restored through an order releasing him to her, Judge O'Neill-Levy did enter a finding against Noah's father. In a dispositional order dated January 15, 2013, Judge O'Neill-Levy placed Mr. K. under ACS supervision for a year. Thus the child remains under court jurisdiction on the neglect docket as of today's date. [*3]

Also on January 15, 2013, Judge O'Neill-Levy entered an order granting Ms. K. weekly unsupervised visits with Noah (the "visitation order"). The visitation order is the subject of a pending appeal in the First Department.

As of today's date, Ms. M. remains under ACS supervision not with respect to Noah, but with respect to Kesan, pursuant to Judge O'Neill-Levy's finding that she had neglected her older son.

Meanwhile, on or about January 15, 2013, Ms. K. filed a petition for custody of Noah. The petition names both her son (Noah's father) and Ms. M. as respondents. Ms. K.'s custody petition was transferred to the undersigned in late January 2013, along with the Article 10 dockets concerning Noah and Kesan.

On or about April 23, 2013, Ms. K. filed a motion to modify the visitation order, in which she sought Court authorization to take Noah to a family wedding in upstate New York over the Memorial Day weekend.^[FN3] Ms. M. also filed a motion to modify the visitation order, in which she sought to revoke Ms. K.'s unsupervised visitation rights and limit her to supervised visits only. After an evidentiary hearing on June 6, 2013, the Court denied Ms. K.'s motion and adjourned Ms. M.'s motion, which is still pending.

During the course of the hearing on the motions to modify the visitation order, the Court observed that there is a somewhat unusual procedural posture for the ongoing dispute between Noah's mother and paternal grandmother concerning visitation and custody. The visitation issue is being litigated under the Article 10 docket, because the prior judge entered the order on that docket while making other dispositional decisions about the child, having made a finding of neglect against his father. The custody issue is being litigated under Ms. K.'s Article 6 docket, because there is a live petition filed by her, and because the child has been released to his mother under the Article 10 matter following a finding that she did not neglect him.

In the course of a conference with the Court concerning this unusual posture, counsel for Ms. M. observed that the grandmother's petition, which had been filed pro se and alleged "extraordinary circumstances" as its jurisdictional basis, might be insufficient as a matter of law without more factual assertion and that she might move to dismiss. Counsel for Ms. K. indicated that he would seek leave to file an amended petition containing more detailed allegations of extraordinary circumstances. The Court indicated that it would prefer to see consolidated motion practice on the legal issues. The parties agreed to a briefing schedule.

As a result, the Court now has before it the following pleadings under the grandmother's custody docket: 1) Ms. K.'s motion (brought by order to show cause) dated May 23, 2013, for leave to amend, attaching a proposed amended petition and various exhibits from the neglect docket; 2) Ms. M.'s motion for summary judgment, dated June 7, 2013, which included her opposition to the motion for leave to amend; 3) Ms. K.'s opposition to Ms. M.'s motion, dated June 19, 2013, [*4]which the Court considers to also be a reply pleading in her motion for leave to amend; and 4) an affirmation from the attorney for the child supporting Ms. K.'s motion, dated June 21, 2013, which the Court considers to also be an opposition to Ms. M.'s motion. Despite being represented by counsel, Noah's father, Mr. K., a named respondent in the Article 6 case, did not file any pleadings in regard to either motion.

Legal Standard

Pursuant to C.P.L.R. § 3025(b), "a party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of the parties." While it is true that "leave shall be freely given upon such terms as may be just," id., leave should not be granted if the proposed amended petition fails to state a valid cause of action. Heller v. Louis Provenzano, Inc., 303 AD2d 20, 30 (1st Dep't. 2003).

A motion to dismiss under § 3211(a)(7) should be granted if, even assuming all the facts alleged in the petition are true, a valid legal cause of action still does not exist. The court should freely consider affidavits and supplemental information presented by the petitioner because the dispositive inquiry is whether a cause of action exists, not whether it has been properly pled. Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977). The purpose of this rule is to conserve judicial resources. There is simply no reason to conduct a factual hearing if, at the end of such a hearing, the established facts cannot lead to a legal conclusion in the petitioner's favor.

Parents have a superior right to custody of their children over non-parents. Troxel v. Granville, 530 U.S. 57, 65-66 (2000); Bennett v. Jeffreys, 40 NY2d 543, 546 (1976). Nonparents have severely constrained standing rights even to seek custody of a child not their own. As a grandmother, Ms. K. can only assert a cause of action for custody of her grandchild under Domestic Relations Law § 72(2), which provides in pertinent part:

Where a grandparent or the grandparents of a minor child, residing within this state, can demonstrate to the satisfaction of the court the existence of extraordinary circumstances, such grandparent or grandparents of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act. . .

Dom. Rel. L. § 72(2)(a).

The burden of proving that extraordinary circumstances exist lies with the nonparent seeking custody. Mercado v. Mercado, 64 AD3d 951 (3d Dep't. 2009). Only if extraordinary circumstances are established should the court then consider what custody arrangement is in the child's best interests. Bennett, 40 NY2d at 548. With few exceptions, an evidentiary hearing is necessary to determine whether extraordinary circumstances exist. Daniels v. Lushia, 101 AD3d 1405, 1406 (3d Dep't. 2012). Here, petitioner, as supported by the attorney for the child, asserts various facts which she argues amount to "extraordinary circumstances" and asks for an [*5]evidentiary hearing to establish the truth of these allegations. The legal issue in the pending motion is whether, assuming these facts are true, they amount to "extraordinary circumstances" under the law sufficient to grant her the requested hearing, or whether they fail to give her standing to seek custody.

Facts

The following facts, which are assumed to be true for the sake of deciding the pending motions, are taken from the proposed amended petition as well as the pleadings and supporting documentation submitted by the petitioner and the attorney for the child.

Noah and his brother Kesan were the subject children of a neglect case brought against Noah's father, Taarik K., by ACS on or about July 27, 2011. ACS alleged that Mr. K. misused marijuana and engaged in acts of verbal abuse against the boys' mother in their presence. Ms. M. was not charged with wrongdoing, and at intake the court temporarily released the children to her care. However, ACS later alleged that Ms. M. neglected Kesan by using excessive corporal punishment against him, and that Noah was derivatively neglected by her, and sought a court order of removal of both children. Noah was remanded to ACS custody on or about October 25, 2011, and he was placed with his grandmother. At this time, Kesan was 12 years old and Noah was 16 months old. Noah's legal status was changed on November 17, 2011, at which time the court released him directly to his grandmother's care pursuant to Family Court Act § 1017.

Invoking her rights under Fam. Ct. Act § 1028, on November 17, 2011, Ms. M. sought the return of her children. The hearing occurred over several dates and concluded on March 19, 2012 with an order denying her application in which Judge O'Neill-Levy concluded that the children would be at imminent risk to be returned at that time.

On November 29, 2012, the court entered findings against Mr. K. with respect to both children^[FN4] and against Ms. M. with respect to Kesan only. Specifically, Judge O'Neill-Levy found that Ms. M. had neglected Kesan by using excessive corporal punishment against him, based on evidence from multiple sources that she beat him repeatedly over time with a belt and threatened to continue doing so until he bled, and that he was in fear of her. Among other pieces of evidence credited by Judge O'Neill-Levy was the testimony of the Legal Aid social worker that

Kesan, who looked sad, described the pain the beatings caused him, asking her, "Do you know how it feels to have to take a shower with welts all over your skin?" and told her that he put ice on his injuries after his mother went to bed.

(Order of Fact-Finding, NN-21019-20/11, Nov. 29, 2012, at 3.) However, Judge O'Neill-Levy dismissed the derivative neglect allegations regarding Noah because the only evidence about him was that he appeared well cared for in his mother's care. (Id. at 5.) Because the petition against [*6]her regarding Noah was dismissed, Noah returned to Ms. M.'s care on December 3, 2012.

Judge O'Neill-Levy entered a dispositional order on the neglect docket on January 15, 2013. The Court released the children to Ms. M..^[FN5] Having made a finding against Ms. M. concerning Kesan, the Court directed Ms. M. to refrain from using corporal punishment; continue to attend mental health services; ensure that Kesan remain in therapy until his therapist determines he no longer needs it; engage in family therapy with Kesan; and comply with ACS supervision (including reasonable new referrals) and preventive services. Having made a finding against him regarding both children, the Court ordered Mr. K. to submit to random drug screens and test negative for all illicit substances; enroll in and complete a drug treatment program; and enroll in and complete a batterer's program.^[FN6]

Noah had been in Ms. K.'s care continuously from October 25, 2011, to December 3, 2012, from the age of 16 months to approximately two-and-a-half years-old, a critical period during child development. During that period they established a strong bond. Under the neglect docket, Judge O'Neill-Levy entered a joint visitation order for both Mr. K. and his mother, providing that Ms. K. may visit Noah on Sundays from 10 a.m. to 5 p.m., and that Mr. K. may have supervised visits with his son at Ms. K.'s home.^[FN7]

Since the dispositional order on the neglect docket was entered, Ms. M. has been under ACS supervision. In early February 2013, Ms. M. told ACS that she had stopped attending mental health services, and her therapist confirmed that she had last attended in October 2012. She told both ACS and her therapist that she did not want to be in therapy and did not think she needed it. Ms. M. had previously dropped out of therapy with a prior provider as well.

Also in early 2013, ACS referred Ms. M. for counseling and a parenting class at an agency specializing in screening mothers for post-traumatic stress disorder and depression and assessing how these issues may be affecting their parenting. Ms. M. missed the first appointment and it had to be rescheduled. She was eventually screened out as she showed no signs of PTSD. She has been assessed to need group psychotherapy to help her gain insight into her pattern of interpersonal difficulties, but she does not feel comfortable going as she does not want other people in her business.

During the hearing on June 6, 2013, concerning the cross-motions to modify Ms. K.'s [*7]visitation order, Ms. M. testified that she disagreed with the Court's finding that she had engaged in excessive corporal punishment of Kesan and asserted that neither she nor Kesan needs therapy to address the issues that led to the finding. The ACS reports submitted as part of the motions (all post-dating the dispositional order on the neglect case) all state that during each home visit, the ACS worker found no safety concerns in the home, and the children appeared well and free of marks or bruises.

Ms. M. is physically challenged, being confined to a wheelchair. She receives nine hours of daily homemaking services. She has a terminal illness and in 2010 was diagnosed with progressive multifocal leukoencephalopathy ("PML"), a central nervous system disorder related to her other illness that causes weakness and tremors in the extremities. The condition also causes demylination of white matter in the brain, leading to significant impairments in cognition and, in some cases, rapid progression to dementia. During a psychiatric evaluation performed by Dr. Richard Kassner in July 2011, Ms. M. exhibited symptoms of mild cognitive impairment, including tangential thinking and impaired concentration. However, the ACS neglect case against her (which initiated in October 2011) did not allege (and the Court did not find) that she had a cognitive impairment of any kind. Dr. Kassner's July 2011 evaluation stated that she has a basic understanding of her circumstances and appears fully aware of her history. While noting that it is possible she has impaired judgment and insight due to PML, her behavior was said to reflect a personality disorder more than a cognitive impairment. Neither Ms. K. nor the attorney for the child makes any allegations concerning her current cognitive levels or any impact they may have on her ability to parent Noah.

Noah is currently three-years-old, just one year younger than the testimony at the fact-finding hearing established Kesan was when Ms. M. first hit him.

Analysis

Petitioner and the attorney for the child offer various theories for how the above facts amount to extraordinary circumstances, each of which will be considered in turn.

Extended Disruption in Custody

Domestic Relations Law § 72(2)(a) provides that an extended disruption of parental custody shall constitute extraordinary circumstances, thus giving a grandparent standing. The statute goes on to state, in pertinent part:

"[E]xtended disruption of custody" shall include, but not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents, provided, however, that the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than twenty-four months.

Dom. Rel. L. § 72(2)(b) (emphasis added). While Noah was cared for by his grandmother for 16 [*8]months, during a critical developmental stage of his life, it is beyond dispute that this was arrangement was fundamentally involuntary by Ms. M.. She did not consent to his removal from her home; a court ordered it, she contested the order, and after a full evidentiary hearing, the court continued the remand. Ms. M. may have nominated Ms. K. as a resource or supported the placement with her as opposed to placement with a stranger or other resource, but this does not transform the placement into a voluntary one. "A period of separation during which a parent is trying to regain custody lawfully is entitled to little, if any, consideration" in determining whether the period amounts to extraordinary circumstances. Ferguson v. Skelley, 80 AD3d 903, 904 (3d Dep't. 2011); Gale v. Gray, 39 AD3d 903, 904-05 (3d Dep't. 2007). Ms. M. not only requested the return of Noah under Family Court Act § 1028, but after she lost that hearing, she continued to fight for his return by contesting the neglect petition itself, and she was ultimately victorious.

Fundamental Flaw in Respondent's Understanding of Parenting

Petitioner and the attorney for the child argue that the finding of neglect against Ms. M. regarding Kesan, combined with her failure to comply with the dispositional order entered against her as a result of that finding, demonstrate that she has a fundamentally flawed understanding of the parenting duty. See In re Cadejah, 33 AD3d 1155 (3d Dep't. 2006). They assert that this flaw amounts to circumstances so extraordinary that they are sufficient to provide the petitioner standing in a custody case. However, this argument overlooks a critical fact: the judge who found Ms. M. neglectful of Kesan dismissed the derivative neglect allegations against her regarding Noah.

While the Family Court Act permits evidence of neglect of one child to be used in a prosecution against a parent for neglect of another child, Fam. Ct. Act § 1046(a)(i), derivative findings are not mandatory. Matter of Danielle H.H., 236 AD2d 715, 716 (3d Dep't. 1997); Matter of Douglas E. 191 AD2d 694 (2d Dep't. 1993); cf. Petition of Dep't. of Pub. Welfare to Dispense With Consent to Adoption, 421 N.E.2d 28, 37 (Mass. 1981) (noting that parent may be fit as to one child though unfit as to another). The derivative neglect claim against Ms. M. was dismissed for lack of evidence. While this claim is not strictly res judicata — Ms. K. was not a party to the neglect case and ACS is not a party to the custody case — it would be nevertheless perverse if a parent could successfully defend herself from state intervention only to have to re-defend on the same allegation later, especially by the state-sanctioned party who had cared for the child during the period of involuntary state intervention.

Moreover, though it may be true that Ms. M. has failed utterly to comply with the dispositional order on the neglect docket, to date neither ACS nor the attorney for the child has sought enforcement of that order or any other form of relief permissible under Article 10. Furthermore, ACS has not filed a new neglect case against Ms. M. concerning Noah. While such a filing is not a prerequisite to a private party's maintenance of a custody action sounding in extraordinary circumstances, the Court finds the lack of any litigation against the respondent regarding Noah by ACS or the attorney for the child persuasive. Essentially, then, there appears to be no interpretation of the available facts that could lead the Court to conclude that Ms. M. is unfit as to Noah.

Derivative Neglect Plus Changed Circumstances

As an additional argument, the petitioner and the attorney for the child assert that the derivative neglect theory should be viewed in the light of a changed fact: Noah is older now than he was at the time Judge O'Neill-Levy dismissed the derivative claim against his mother. Specifically, they note that Ms. M. began to hit Kesan when he was four-years-old, and Noah is now three, whereas at the time neglect allegations were filed against Ms. M., he was 16 months old. This key fact, they argue, amounts to extraordinary circumstances, especially when taken in combination with Ms. M.'s failure to address the issues that led to the neglect finding of excessive corporal punishment regarding Kesan.

While this argument has some intellectual appeal, upon closer inspection it must be rejected. A finding of neglect cannot be based on a failure to prevent theoretical future harm which has not occurred. Matter of Lebraun H., — N.Y.S.2d —, 2013 WL 6038393, 2013 NY Slip Op. 07639 (4th Dep't., Nov. 15, 2013); Matter of P. Children, 272 AD2d 211, 212 (1st Dep't. 2000). So too, a finding of extraordinary circumstances — which would lead to the Court conducting a best interests hearing and intruding into the parent-child relationship — should not be based on a future harm. We do not live in a Minority Report^[FN8] world, where ordinary people can be hauled into court to defend against deeds they are alleged to have committed in the future. Fundamentally, it must be recognized that even though Noah has remained under court and ACS jurisdiction due to the finding against his father, his mother is now a non-respondent in the ongoing Article 10 case regarding him. The only reason ACS knows anything about her progress with services is because of the finding regarding Kesan. Ms. M. may not be the best parent, but the fact that she was found to have neglected Kesan cannot be used by a grandparent to assert extraordinary circumstances with respect to Noah and invoke a renewed judicial inquiry into her parenting of him.

Respondent's Medical Condition

In theory, Ms. M.'s medical condition could be characterized as extraordinary circumstances sufficient to permit the grandmother a hearing. However, in the Court's view, the petitioner would have to allege more than the fact that the mother has the diagnoses she has in order for the condition itself to be an extraordinary circumstance. For example, the petitioner must allege that the mother's condition is actively interfering in her parenting, to the child's detriment; that she has refused reasonable assistance to enable her to maintain custody of the child despite her condition; and/or that her prognosis is poor and that she has failed to make alternative arrangements for the child's care in the event her condition worsens. In the absence of such allegations, every parent with a terminal medical condition would be vulnerable to a custody suit by a grandparent, adding the unnecessary stress of judicial second-guessing of her parenting. The Court is not aware of any medical exception to the Constitutional rule protecting [*9]parents from such intrusions as set forth in Troxel and its historic antecedents. Indeed, subjecting parents with terminal conditions to judicial scrutiny of their parenting simply because of their diagnosis might be a violation of the Americans with Disabilities Act or other statutes protecting people from discrimination based on actual or perceived disabilities. See generally, In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979) ("if a person has a physical handicap it is impermissible for the court simply to rely on that condition as prima facie evidence of the person's unfitness as a parent or of probable detriment to the child"); Lauren Shapiro, "An HIV Advocate's View of Family Court: Lessons From a Broken System," 5 Duke J. Gender L. & Pol'y 133 (1998); Aline Cole Barrett and Michelle A. Flint,"The Effect of AIDS on Child Custody Determinations," 23 Gonz. L. Rev. 167 (1987-88).

The attorney for the child asserts that "the parties and the Court have never received any information on her treatment, prognosis or her plans for Noah and Kesan's future." (Baumgartner Aff. ¶ 21.) However, there are no allegations sufficient to demonstrate extraordinary circumstances as a result of Ms. M.'s medical condition, and it is not the parent's burden to provide such information as part of the custody case. Ms. M. is under ACS supervision, yet the reports submitted by the petitioner and the attorney for the child present no facts, allegations, or even concerns about her cognitive abilities or medical condition. The fact that she has a certain diagnosis, without more, cannot constitute extraordinary circumstances.

Conclusion

For the foregoing reasons, motion # 2 is DENIED, motion # 3 is GRANTED, and the petition is DISMISSED.

Dated: November 25, 2013ENTER

_____________________________________

Hon. Erik S. Pitchal